This appeal arises from Rolland Goodin's claim for benefits under the Black Lung Benefits Act (BLBA or Act), 30 U.S.C. §§ 901-944 (2006 & Supp. V 2011). [1] In August 2011, a Department of Labor ALJ awarded BLBA benefits to Goodin after applying 30 U.S.C. § 921(c)(4)'s "fifteen-year presumption," which was revived by Congress in 2010. [2] A. 254, 275-83. To invoke this presumption, miners must establish (1) "the existence of a totally disabling respiratory or pulmonary impairment" and (2) that they worked for at least fifteen years in underground coal mines, or in surface mines where "the conditions of [the] miner's employment" were "substantial similarity to conditions in an underground mine." 30 U.S.C. § 921(c)(4). Once invoked, "there shall be a rebuttable presumption that such miner is totally disabled due to pneumoconiosis," and therefore entitled to BLBA benefits. Id.

After an unsuccessful appeal to the Benefits Review Board, Antelope petitioned this Court for review. Antelope argues, inter alia, that the ALJ applied incorrect legal standards in finding (1) that Goodin, a former surface miner, had worked for at least fifteen years in conditions "substantial similar" to conditions in underground mines, and (2) that Antelope had failed to rebut the presumption that Goodin is totally disabled by pneumoconiosis. The Director and Goodin filed response briefs defending the award.

On September 25, 2013, the Department of Labor promulgated regulations implementing the 2010 BLBA amendments, including the restored fifteen-year presumption. Regulations Implementing the Byrd Amendments to the Black Lung Benefits Act: Determining Coal Miners' and Survivors' Entitlement to Benefits; Final Rule, 78 Fed. Reg. 59101-19 (Sept. 25, 2012) (attached). [3] Coincidentally, the Court heard oral argument in this case on that same day. Shortly after the argument, the Court ordered the parties to submit supplemental briefs addressing why the revised regulations were relevant (or not relevant) to this proceeding. This brief is the Director's response to that order.

The BLBA's revised regulations implementing the fifteen-year presumption apply to this claim and make one significant change to the standard of review. In revised section 718.305(b)(2), the Director promulgated his longstanding interpretation of 30 U.S.C. § 921(c)(4)'s "substantial similarity " requirement in a notice-and-comment rulemaking for the first time. As a result, that interpretation is entitled to Chevron deference.

The revised regulation governing rebuttal, in contrast, has little impact on this appeal. Revised section 718.305(d) establishes the same rebuttal standards as its predecessor (albeit in clearer language). While Antelope devotes much energy to attacking those standards, the issue is simply not relevant to this appeal. The ALJ's rebuttal findings were not based on any particular rebuttal standard but on his determination that Antelope's medical experts were not credible. Because those credibility determinations are supported by substantial evidence, Antelope cannot establish rebuttal under any standard.

The conditions in a mine other than an underground mine will be considered "substantial similarity" to those in an underground mine if the claimant demonstrates that the miner was regularly exposed to coal-mine dust while working there.

78 Fed. Reg. 59114.

Under this standard, disabled surface miners must provide credible evidence establishing that they were regularly exposed to coal-mine dust to invoke the presumption. 78 Fed. Reg. 59105. But "it is unnecessary for a claimant to prove anything about dust conditions existing at an underground mine for purposes of invoking the 15-year presumption." Id.

Revised 718.305(b)(2) is a new regulation, but it is not a new interpretation of section 921(c)(4)'s "substantial similarity" requirement. In all substantive respects, the revised regulation is identical to the interpretation advanced by the Director in this case, see Director's Brief at 36, and accepted by the only court of appeals to address the issue, Director, OWCP v. Midland Coal Co., 855 F.2d 509, 512 (7th Cir. 1988) (a disabled surface miner "is required only to produce sufficient evidence of the surface mining conditions under which he worked" to invoke the presumption). [4] The Seventh Circuit recently reaffirmed this position in a case applying the fifteen-year presumption as revived in 2010. Consolidation Coal Co. v. Director, OWCP [Burris], ___ F.3d ___, 2013 WL 5530986 (7th Cir. Oct. 8, 2013). And the Benefits Review Board, which has nationwide jurisdiction over BLBA claims, applies the same. See, e.g., Harris v. Cannelton Indus., Inc., 24 Black Lung Rep. (MB) 1-217, 1-223 nn.3, 5, 2011 WL 1821519 (Ben. Rev. Bd. 2011) (claim within the Fourth Circuit's jurisdiction).

The requirement that surface miners prove that they were "regularly" exposed to dust was added to the regulation "to clarify that a demonstration of sporadic or incidental exposure [to coal dust] is not sufficient to meet the claimant's burden." 78 Fed. Reg. 59105. But it is entirely consistent with the Director's and the Seventh Circuit's interpretation of section 921(c)(4)'s "substantial similarity" inquiry before the new regulation was promulgated. See, e.g., Director's Brief at 42 n.2 (explaining that periods of surface-mine employment during which a miner is only exposed to de minimus amounts of coal dust cannot be used to establish the required fifteen years); Freeman United v. Summers, 272 F.3d 473, 480 (7th Cir. 2001) (rejecting claimant's argument that "a miner can prove substantial similarity simply by showing that he was in or around a coal mine for at least 15 years."). The crucial elements of the Director's interpretation remain unchanged: disabled surface miners can establish "substantial similarity" without proving what conditions prevail in underground mines or precisely quantifying their exposure to dust on the surface. Compare 78 Fed. Reg. 59104-05 with Director's Brief at 36-43.

The revised regulation became effective on October 25, 2013, see 78 Fed. Reg. 59102, by operation of proposed section 718.305(a) and, by its own terms applies to "all claims filed after January 1, 2005, and pending on or after March 23, 2010." 78 Fed. Reg. 59114. This is the same category of claims that the 2010 amendments themselves apply to, see n.2, supra, including Goodin's claim, which was filed in 2007 and remains pending, A.255.

In contrast, regulations that do not "replace[] a prior agency interpretation" can be applied to "antecedent transactions" without violating Bowen. Smiley v. Citibank, 517 U.S. 735, 744 n.3 (1996) (Explaining that "[w]here . . . a court is addressing transactions that occurred at a time where there was no clear agency guidance, it would be absurd to ignore the agency's current authoritative treatment of what the statute means"). The same is true of regulations that clarify existing law. See, e.g., Levy v. Sterling Holding Co., 544 F.3d 493, 507 (3d Cir. 2008) ("[W]here a new rule constitutes a clarification – rather than a substantive change – of the law as it existed beforehand, the application of that new rule to pre-promulgation conduct necessarily does not have an impermissible retroactive effect, regardless of whether Congress has delegated retroactive rulemaking power to the agency."); Clay v. Johnson, 264 F.3d 744, 749 (7th Cir. 2001) ("[A] rule simply clarifying an unsettled or confusing area of the law . . . does not change the law, but restates what the law according to the agency is and has always been.").

Congress's decision to restore the Act's fifteen-year presumption in 2010 certainly changed the legal landscape. But Congress has broad power to legislate economic matters retroactively and, in any event, Antelope has not challenged Goodin's award on that ground. [5] Revised section 718.305(b)(2), on the other hand, simply restates the Director's longstanding interpretation of section 921(c)(4)'s "substantial similarity" requirement, which was adopted by the only court of appeals to consider the question. See infra at 5. Applying it to Goodin's claim is therefore not impermissibly retroactive.

While the revised regulation does not alter the Director's construction of the statute's "substantial similarity" requirement, that longstanding interpretation is now incorporated in a regulation promulgated after notice-and-comment rulemaking. Such rules are generally entitled to controlling deference so long as they satisfy the familiar two-step analysis established in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). [6] Under Chevron, "'[i]f Congress has not directly addressed the precise question at issue,' we ask whether the [agency]'s formal interpretation is a 'permissible interpretation by the [agency.]'" Qwest Corp. v. F.C.C., 689 F.3d 1214, 1224 (10th Cir. 2012) (quoting Chevron, 467 U.S. at 843-44).

Section 921(c)(4) provides no guidance about what factors to consider in determining whether a surface miner worked under conditions "substantial similarity" to conditions in underground mines. When called upon to interpret this requirement, a Seventh Circuit panel confessed, "we can discern no plain meaning of the requirement of 'substantial similarity.' Indeed, immediately apparent is the fact that the Act does not specify whether a claimant must establish similarity to a particular underground mine, a hypothetical underground mine, the best, worst, or an average underground mine." Midland Coal, 855 F.2d at 511. Moreover, the statute does not explain how similar a surface miner's working conditions must be to conditions underground to qualify as "substantial[ly]" similar, another source of ambiguity. Cf. Sorenson Commc'ns, Inc. v. FCC, 659 F.3d 1035, 1042 (10th Cir. 2011) (ADA provision requiring FCC to ensure that hearing-impaired people have access to a telephone system "functionally equivalent" to the general voice telephone system is ambiguous because the statute "does not define 'functionally equivalent'").

Once ambiguity is established, step two of the Chevron analysis asks whether the agency's interpretation is permissible. Where multiple reasonable constructions of a statute exist, the agency has broad discretion to choose among them. As this Court has explained, "[t]he agency's interpretation need not persuade with elegant clarity of thought; it need not speak to our highest sense of fair dealing; it need not even appear to us very wise. Our deference is not so dearly purchased. We require only reasonableness from the agency." Barrera-Quintero v. Holder, 699 F.3d 1239, 1246 (10th Cir. 2012).

The fact that a statutory provision is ambiguous does not, of course, permit an agency to construe the statute in a manner contrary to its plain meaning. During the rulemaking process, three commenters argued that revised section 718.305(b)(2) did just that because "it does not require the claimant to prove any type of similarity between exposures in underground and non-underground work." 78 Fed. Reg. 59104. This is not so. It is true that the revised regulation does not require a comparison between a surface miner's dust exposure and dust conditions in a particular underground mine. Instead, it requires a comparison between the surface miner's dust exposure and a legislative fact about working conditions in underground coal mines: that they are dusty. Id. at 59104-05 (citing Midland Coal, 855 F.2d at 512). Revised section 718.305(b)(2)'s "regularly exposed to dust" standard is consistent with the statutory text.

The fact that the Director and the Seventh Circuit adopted a substantially identical standard in cases governed by the original version of section 921(c)(4) lends further support to the revised regulation's reasonableness. Its application in those cases demonstrates the standard's practicality. And, by re-enacting section 921(c)(4) without change in 2010, Congress implicitly endorsed this longstanding administrative and judicial interpretation of the provision. See Lorillard v. Pons, 434 U.S. 575, 581 (1978); Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990); U.S. v. O'Flanagan, 339 F.3d 1229, 1235 (10th Cir. 2003).

Furthermore, the Department rationally explained why it rejected competing interpretations of section 921(c)(4)'s "substantial similarity" language advanced by various commenters. For example, the Department rejected suggestions to "adopt technical comparability criteria, such as requiring a claimant to produce scientific evidence specifically quantifying the miner's exposure to coal dust in non-underground mining" as impractical because many miners do not have access to such information. 78 Fed. Reg. 59105. As the Supreme Court explained, "a showing of the degree of dust concentration to which a miner was exposed [is] a historical fact difficult for the miner to prove." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 29 (1976). The Department is surely not obligated to construe section 921(c)(4) in a way that would prevent most disabled surface miners from even attempting to invoke the presumption. See generally, Wildearth Guardians v. Nat'l Park Serv., 703 F.3d 1178, 1183 (10th Cir. 2013) ("[A]gencies are not required to consider alternatives they have 'in good faith rejected as too remote, speculative, or . . . impractical or ineffective.").

Nor could the Department avoid this problem by developing an objective standard representing conditions in underground mines. Because there is no practical way for most surface miners to objectively quantify their dust exposure, their "dust exposure evidence will be inherently anecdotal[.]" 78 Fed. Reg. 59105. As a result, "it would serve no purpose for the Department to "develop an objective, and therefore dissimilar, benchmark of underground mine conditions for comparison purposes." Id.

Notably, while three commenters stated that the Department should develop "an objective standard for proving substantial similarity," none of them actually suggested such a standard. 78 Fed. Reg. 59104. Nor did Antelope. The Department can hardly be faulted for not adopting an alternative interpretation of the Act that was not presented to it. And their inability to articulate any workable competing standards reinforces the conclusion that revised section 718.305(b)(2) is a reasonable interpretation of the Act entitled to Chevron deference.

Revised section 718.305(d) provides the Department's authoritative interpretation of the fifteen-year presumption's rebuttal requirements. It does not change the legal standards governing rebuttal, see Director's Brief at 32 n.12, but is designed to be substantially clearer than its predecessor. 78 Fed. Reg. 59106. Those standards, however, are not relevant to this appeal. As explained in the Director's response brief, the ALJ's determination that Antelope had failed to rebut the presumption was based entirely on his finding that Antelope's medical experts were not credible. Director's Brief at 34-36. The ALJ's credibility determinations on that issue easily pass muster under substantial-evidence review and should be affirmed.

The fact presumed by section 921(c)(4) – that Goodin is totally disabled by pneumoconiosis – is medical. It can be rebutted only with credible medical evidence demonstrating that Goodin is not actually totally disabled by pneumoconiosis. Antelope did submit medical evidence purporting to prove just that. Its experts, Drs. Farney and Repsher, testified that Goodin's disabling COPD was caused entirely by cigarette smoking and not by exposure to coal dust. A.47-50, 64-66, 208, 219. The ALJ found this testimony insufficient to rebut the presumption, not because it did not satisfy any particular rebuttal standard, but on the more fundamental ground that Drs. Farney and Repsher were not credible. A.282-284. Without credible medical evidence, Antelope cannot establish rebuttal under any plausible standard, no matter how lenient.

This Court has emphasized that "the task of weighing conflicting medical evidence is within the sole province of the ALJ" who is "in a unique position to determine credibility and weigh the medical evidence." Hansen v. Director, OWCP, 984 F.2d 364, 368, 370 (10th Cir. 1993); accord, Energy West Mining Co. v. Oliver, 555 F.3d 1211, 1218-19 (10th Cir. 2009) ("This court cannot substitute its assessment of the credibility of experts for that of the ALJ, and thus cannot accept [the employer's] invitation to reexamine the weight of the medical evidence supporting the ALJ's decision.").

The reasons the ALJ gave for discrediting Drs. Farney and Repsher – among them that the doctors relied on statistical generalities without addressing why Goodin "is not among the supposed minority whose COPD is caused by coal dust rather than cigarette smoke" and that neither doctor "explain[ed] why coal dust could not have aggravated any of the lung disease they attribute to smoking" – are rational and supported by the record. [7] A.282. This Court and its sister circuits have routinely deferred to similar credibility determinations by ALJs in black lung cases. [8] And his findings were properly reviewed and affirmed by the Benefits Review Board. A.291-92. In sum, "[t]he Board and the ALJ have done their work." Energy West Mining, 555 F.3d at 1219. No more is required.

In view of the foregoing, the Director respectfully requests that the Court rule that revised regulation applies to this case and apply revised section 718.305(d)(2)'s interpretation of the statute's "substantial similarity" requirement in deciding this appeal.

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I certify on June 12, 2013, that this brief is proportionally spaced, using Times New Roman 14-point typeface, and contains **words, as counted by Microsoft Office Word 2010.

[1] Unless otherwise noted, all references to the BLBA are to the 2011 edition of Title 30.

[2] Section 921(c)(4) was restored in BLBA claims filed "after January 1, 2005, that are pending on or after the date of enactment of this Act [March 23, 2010]" by Section 1556 of the Patient Protection and Affordable Care Act (ACA). Pub. L. No. 111-148, § 1556 (a), (c), 124 Stat. 119, 260 (2010). Before this amendment, the fifteen-year presumption was available only in BLBA claims filed before 1982. See 30 U.S.C. § 921(c)(4) (2006). There is no dispute that the 2010 amendment applies to Goodin's claim.

[6] The new regulation was enacted pursuant to 30 U.S.C. § 936(a), which authorizes the Secretary of Labor "to issue such regulations as [he] deems appropriate to carry out the provisions of [the BLBA]." See 78 Fed. Reg. 59102. The Director administers the BLBA on the Secretary's behalf. Secretary's Order 10-2009, 74 Fed. Reg. 58834 (Nov. 13, 2009).